Attorney General of New South Wales v Martin

1. [1]

   By Summons filed on 12 July 2012 the plaintiff, the Attorney General of New South Wales, seeks orders against the defendant, Anthony Gilbert Martin, under the Vexatious Proceedings Act 2008 (NSW). The substantive orders sought are:

2. [2]

   On 5 March 2013 orders pursuant to ss 8(7)(a) and (b) were made by this Court: Attorney General of New South Wales v Anthony Gilbert Martin [2013] NSWSC 442. On 13 June 2014 those orders were set aside by the Court of Appeal and the matter remitted to this Court for further hearing: Martin v Attorney General for the State of New South Wales [2014] NSWCA 189.

3. [3]

   The further hearing took place over a three day period in February of this year. At the conclusion of the hearing, I was advised that there was pending in the Court of Appeal an application by Mr Martin, the outcome of which could affect my decision. I accordingly indicated that I would not deliver judgment until I was notified that that application had been determined. The application was determined on 5 May, and reasons were delivered by the Court of Appeal on 22 May: Martin v State of NSW [2015] NSWCA 141.

4. [4]

   On 12 May the Crown Solicitor, acting for the Attorney General, advised that the Court of Appeal had delivered judgment in an unrelated matter, but one that may have had an impact on the submissions in the present case: Viavattene v Attorney General (NSW) [2015] NSWCA 44. I was asked to allow the parties time to make further submissions. I agreed to that course, and a timetable was fixed, permitting the Attorney General to file further submissions by 5 June, Mr Martin to do so by 23 June. In fact, the Attorney General’s submissions were received on 17 June, and Mr Martin’s on 7 July.

5. [5]

   I now turn to deal with the application.

The application

1. [6]

   Section 8 of the Vexatious Proceedings Act relevantly provides:

2. [7]

   “Proceedings” is widely defined in s 4, as follows:

3. [8]

   It will be seen that the power to make orders under s 8(7) is discretionary and is dependent upon satisfaction that the defendant has “frequently instituted or conducted vexatious proceedings in Australia” (s 8(1)(a)). (Paragraph (1)(b) provides an additional basis for the order, satisfaction that the defendant has acted in concert with a person already subject to an order under sub-s (7), or who comes within the par (a) description, but that is not relied upon by the Attorney General and need not be further considered.) There are thus three conditions to be satisfied before an order may be made. They are:

4. [9]

   “Vexatious proceedings” is defined in s 6 to include:

5. [10]

   The Attorney General sought to establish the foundation for the orders sought - that is, that Mr Martin has frequently instituted or conducted vexatious proceedings in Australia - by reference to a lengthy litigation history. The evidence was contained in four affidavits affirmed by Mr Aaron David Baril (a solicitor employed in the Office of the Crown Solicitor), to one of which were annexed or exhibited a large amount of documentary material; and an affidavit of Janet De Castro Lopo (also a solicitor employed in the Office of the Crown Solicitor). The documentary material was presented in two large volumes, one of which contained judgments and decisions in proceedings brought by Mr Martin, in courts of this State, the Australian Capital Territory, and, in one case, the High Court of Australia; the second contained the originating processes and notices of appeal in relation to some, but not all, of those proceedings.

6. [11]

   Mr Martin filed affidavits sworn by him on 27 August 2012, 5 October 2012, 8 September 2014, 15 September 2014, 7 October 2014 and 22 December 2014. During the course of the hearing, he tendered a great deal of additional documentary material, much of which could be seen to be of little, if any relevance, but which was for convenience admitted provisionally, subject to relevance.

An evidentiary issue

1. [12]

   At the outset of the proceedings, a question arose concerning the admissibility of some of the evidence tendered on behalf of the Attorney General. Section 91 of the Evidence Act 1995 (NSW) provides as follows:

2. [13]

   Counsel for the Attorney General submitted that the Attorney General was entitled to rely upon the “findings” in these judgments because none of the earlier proceedings dealt with the question of whether the claims made by Mr Martin are “vexatious” within the meaning of s 6 of the Vexatious Proceedings Act. That, in my opinion, implies too broad a test. Whether s 91 operates to exclude the use of any of the decisions and judgments will depend upon an analysis of three things - (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the Attorney General seeks to put those judgments - that is, what facts she seeks to prove by their use.

3. [14]

   The use that may, in an application under s 8 of the Vexatious Proceedings Act, be made of the findings and conclusions of the court that heard and determined the proceedings that give rise to the application has been considered on a number of previous occasions. Only one of those was at appellate level: Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125. The Court of Appeal said:

4. [15]

   Two things are to be observed about these passages. First, there is no indication that the Court was referred to s 91, and that provision did not play any part in the approach to the question of the evidence available to support an application under s 8. Second, the Court did not reach (or state) any concluded view concerning the admissibility of the judgments to prove, in the Vexatious Proceedings Act proceedings, the facts found by the court that decided the proceeding in question. The Court merely expressed the view that exclusion of those findings would be “an odd result”, and antithetical to the purposes of the Vexatious Proceedings Act.

5. [16]

   A number of other decisions (some of them identified in [50] of Teoh (No 8)) upon which the Attorney General placed reliance similarly did not refer to s 91: Croker, Bar-Mordecai (both referred to in [50]); Attorney General v Wilson [2010] NSWSC 1008; Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192; Attorney General in and for the State of NSW v Potier [2014] NSWSC 118 and Attorney General in and for the State of NSW v Markisic [2014] NSWSC 1596.

6. [17]

   In Chan (one of the decisions referred to in Teoh (No 8)), the attention of Adamson J was drawn to s 91. Her Honour accepted a submission that evidence of the judgments relied upon to prove that the defendant had frequently instituted or conducted vexatious proceedings in that case was adduced to establish matters other than facts in issue in the proceedings: “namely, the outcome of the proceedings and the course they had taken”. She noted a further submission that:

7. [18]

   In Markisic, Schmidt J adopted a similar approach.

8. [19]

   In Potier, McCallum J noted that the judgments in question were admitted without objection, and that neither party had addressed as to the provisions of s 91. Nevertheless, her Honour said:

9. [20]

   As I have indicated above, in my opinion whether the judgments upon which the Attorney General relies can be used for the purpose for which she seeks to use them will depend upon an analysis of the facts that were in issue in the proceedings giving rise to each judgment and the findings of fact made in the judgments.

10. [21]

    It is convenient here to note an alternative submission made on behalf of the Attorney General, against the possibility that evidence of the judgments on which reliance was placed was rejected under s 91. That alternative submission was that I order, pursuant to s 190(3)(b) of the Evidence Act, that s 91 does not apply to the evidence. Section 190(1) empowers the court (where the parties consent) to dispense with the application of various provisions of the Evidence Act, including “Parts 3.2 to 3.8”. Section 91 is contained in Pt 3.5. Section 190(3)(b) permits an order that any one or more of those provisions does not apply to that evidence if their application would cause or involve unnecessary expense or delay.

11. [22]

    I reject the submission. The facts sought to be proved by the evidence (in those cases where I reject it) is fundamental to the issues to be determined. Section 192(2) must be considered. The considerations identified in pars (b), (c) and (d) militate against the use of s 190(3)(b) for the purpose proposed.

12. [23]

    The Attorney General has identified approximately 50 proceedings in which Mr Martin has been involved. Annexure A to Mr Baril’s first affidavit lists 49 such matters. Of those Mr Martin is named as the moving party in all except four. In two of those four, the moving party was a company (Individual Homes Pty Ltd) of which, it was suggested, he was a Director and shareholder. (Mr Martin disputed this.) Annexure A does not contain any information about the nature of the proceedings, or, importantly, their outcome. Far from all of those proceedings are relied upon on behalf of the Attorney General as vexatious proceedings for the purposes of the application. That Mr Martin has initiated, or been involved in the initiation of, a large number of proceedings of itself tells little, if anything, relevant to s 6 of the Vexatious Proceedings Act.

13. [24]

    To know more about the proceedings it will be necessary to go to the two volumes of documents exhibited to Mr Baril’s affidavit.

14. [25]

    In written submissions, followed by oral submissions, counsel for the Attorney General identified 16 “proceedings” upon which particular reliance was placed. Not all of these were relied upon as “vexatious proceedings” within the meaning of s 6 of the Vexatious Proceedings Act; in the case of at least three (and possibly five) reliance was placed upon those judgments as “context” evidence. However, the position adopted on behalf of the Attorney General in this respect was a little unclear. Although reliance upon those proceedings as “vexatious” within s 6 was expressly disclaimed, nevertheless s 6(d) was invoked. The position of the Attorney General appeared to be that she could rely upon a pattern of conduct in various proceedings in such a way as to come within s 6(d).

15. [26]

    Having regard to the definition of “proceedings” in s 4 of the Vexatious Proceedings Act, I doubt that that position can be accepted. However, I have no doubt that the conduct of discrete proceedings, even those that do not fit neatly into any of the s 6 categories, is available to be taken into account in the exercise of the discretion to make an order under s 8(7). That discretion, of course, does not arise unless and until the first and second conditions have been satisfied - that is, that Mr Martin instituted or conducted vexatious proceedings, and that he did so frequently.

The evidence

1. [27]

   The evidence shows that Mr Martin has filed (at least) five separate proceedings in the Land and Environment Court of NSW. They were given the numbers, respectively, 80004 of 2009, 80002 of 2010, 80004 of 2010, 80006 of 2010, and 80001 of 2011. All appear to raise issues concerning applications by Mr Martin for exploration licences under the Mining Act 1992 (NSW), or such licences granted to other individuals. In each case, interlocutory applications were made, either by Mr Martin, or by those named as defendants in the proceedings.

2. [28]

   Mr Martin has also filed a number of appeals to the Court of Appeal, and applications in the Supreme Court of the Australian Capital Territory, and, in one case, an application to the High Court of Australia.

3. [29]

   It is now necessary to deal with each of those proceedings upon which the Attorney General relies to prove that Mr Martin has frequently instituted or conducted vexatious proceedings within s 6. In each case, a preliminary question will be whether the judgment is admissible having regard to the provisions of s 91 of the Evidence Act.

Proceedings in the Land and Environment Court of NSW

1. [30]

   By Summons filed in the Land and Environment Court on 24 September 2009, Mr Martin sought orders as follows:

2. [31]

   The Summons named the NSW Department of Industry and Investment as first defendant, and 11 named individuals as second to twelfth defendants.

3. [32]

   On 11 November Mr Martin sought leave to file an Amended Summons. The proposed Amended Summons expanded the orders sought to include several claims concerning mining exploration licences, and, additionally:

4. [33]

   At about the same time, the first defendant filed a Notice of Motion seeking to have the proceedings struck out under Uniform Civil Procedure Rules (NSW) 13.4. Both Notices of Motion constituted or gave rise to “proceedings” within the definition in s 4(b) of the Vexatious Proceedings Act.

5. [34]

   On 11 December 2009 those interlocutory proceedings came before Commissioner Dixon, who delivered an extempore judgment on the same day. The Commissioner first dealt with the first defendant’s application under UCPR 13.4.

6. [35]

   UCPR 13.4 provides as follows:

7. [36]

   The Commissioner noted that Mr Martin had relied upon an affidavit and a “bundle of documents filed in court”. The judgment includes the following:

8. [37]

   The Attorney General relied upon this judgment to establish that the principal proceedings were vexatious within the definition of “vexatious proceedings” in ss 6(a) and 6(c) of the Vexatious Proceedings Act - that is, that the proceedings were an abuse of process of the Land and Environment Court, and that they were instituted or pursued without reasonable ground.

9. [38]

   That is, in substance, precisely what Commissioner Dixon found. In other words, the Attorney General seeks to rely upon the factual findings of Commissioner Dixon to establish the existence of the relevant facts for the purposes of s 6. That the proceedings before Commissioner Dixon disclosed “no reasonable cause of action” is a finding of fact that the proceedings were instituted “without reasonable ground”. That is the very fact that the Attorney General seeks to prove in order to establish that the proceedings were vexatious within the meaning of s 6(c). Commissioner Dixon also found that the proceedings were an abuse of process. That is the very fact that the Attorney General seeks to prove in order to establish that the proceedings were vexatious within the meaning of s 6(a).

10. [39]

    Accordingly, s 91 of the Evidence Act precludes reliance upon Commissioner Dixon’s findings of fact for the purpose of proving that the proceedings were vexatious.

11. [40]

    Since the Attorney General may not rely upon those findings of fact by Commissioner Dixon to establish the facts she seeks to establish for the purposes of s 6 of the Vexatious Proceedings Act, it is appropriate, if the evidence permits, that I make that judgment myself, without recourse to the findings of fact of Commissioner Dixon: see Teoh (No 8) at [51]; Chan at [39]. In this instance, that is not possible. All that is before me is the Summons and the proposed Amended Summons; there was, as indicated above, affidavit and documentary evidence before Commissioner Dixon which appears to have been material to her determination. Although both the Summons and the proposed Amended Summons contain some prayers for relief that are, perhaps, questionable, I am not in any position to determine that they come within any of the paragraphs of s 6. That conclusion could only be reached by having recourse to the judgment of Commissioner Dixon.

12. [41]

    Absent reliance on the findings of fact by Commissioner Dixon, I cannot find that the principal proceedings were vexatious.

13. [42]

    The originating process in respect of these proceedings is not contained in the evidence. The principal proceeding was described by Biscoe J as:

14. [43]

    The proceedings first came before Biscoe J by way of two Notices of Motion, one filed by Mr Martin, and one filed by the Minister. Mr Martin sought summary judgment, interim orders and leave to serve subpoenas. The Minister sought determination of a separate question concerning the jurisdiction of the court to review on its merits a decision under the Mining Act.

15. [44]

    In his judgment, Biscoe J recorded three arguments advanced by Mr Martin, each of which he rejected. It is not necessary to record two of those arguments. Biscoe J was able to deal with them in short order. One of Mr Martin’s arguments that calls for notice was that the decision he challenged had been made by a person who lacked an appropriate delegation. Biscoe J rejected that argument also. He accordingly rejected Mr Martin’s application for summary judgment.

16. [45]

    There is no finding of any fact in issue in the proceedings contained within the judgment upon which the Attorney General relies for the purposes of s 6; accordingly, the judgment is admissible as evidence from which inferences may be drawn concerning Mr Martin’s conduct of litigation. However, the Attorney General does not contend that these proceedings were themselves vexatious within any of the s 6 categories; rather, she contends that they can be relied upon to establish “context”, demonstrating a pattern of behaviour that comes within s 6(d).

17. [46]

    In my opinion, this decision is relevant to the exercise of discretion, should the Attorney General succeed in establishing the first and second steps.

18. [47]

    Mr Martin appealed against the decision to the Court of Appeal. The appeal was dismissed: Martin v State of NSW (No 9) [2011] NSWCA 286, per Basten JA, Handley AJA. The Court held that the decision of Biscoe J was “clearly correct for the reasons he gave”.

19. [48]

    The principal proceedings came before Commissioner Dixon. Mr Martin again raised an issue about the validity of the delegation pursuant to which the challenged decision was made. Commissioner Dixon dealt with that by observing that the same point had been raised before Biscoe J and rejected (in the proceedings mentioned under (ii) above). Commissioner Dixon then dealt with an allegation made by Mr Martin that employees of the Department (other than the delegate) had acted in bad faith in relation to his application; she rejected the submission as “unsupportable”. She dismissed a ground in which Mr Martin made an allegation of contempt. Having dealt with other complaints made by Mr Martin, she dismissed “the appeal”.

20. [49]

    The Attorney General relies upon this decision to establish that the proceedings were vexatious within the meaning of ss 6(a), 6(c) and s 6(d).

21. [50]

    There is no relevant finding of fact that would be excluded by reason of s 91 of the Evidence Act. It is apparent that the proceedings were brought without reasonable cause, and, accordingly, come within ss 6(a) and 6(c) of the Vexatious Proceedings Act.

22. [51]

    The originating process for this proceeding was not in evidence. It can be seen that it was a Summons seeking judicial review of the grant of a mining exploration licence apparently in favour of some other person (presumably Central West Scientific Pty Ltd).

23. [52]

    By Notice of Motion filed on 22 November 2010 Mr Martin sought a variety of orders, one of which was an order that the State of NSW show cause why it should not be charged with contempt of court. He also sought leave to file summary judgment against the respondents, discovery, and an order that:

24. [53]

    The Notice of Motion was not in evidence. It is apparent that it named the State of NSW as first respondent and Central West Scientific Pty Ltd as second respondent.

25. [54]

    Biscoe J declined to make the orders sought, other than as to discovery, which was not contested. Mr Martin’s claim was determined on its merits; there was no fact in issue concerning the nature of the proceedings. Accordingly, there is no preclusion on the use of the judgment by reason of s 91 of the Evidence Act.

26. [55]

    It is, however, plain from the judgment that the Notice of Motion had significant deficiencies. As set out in the judgment of Biscoe J, it was procedurally irregular with respect to the contempt claim; the evidence to support the claim for summary judgment was “quite inadequate”; there was no obligation on the Crown Solicitor to provide the authority sought.

27. [56]

    I have concluded that, apart from the claim for discovery, the interlocutory proceeding commenced by this Notice of Motion was misconceived. It was, within s 6(a) of the Vexatious Proceedings Act, an abuse of the process of the Land and Environment Court; it was, within the meaning of s 6(c), instituted without reasonable cause.

28. [57]

    Mr Martin’s Summons came before Preston CJ in the Land and Environment Court for final hearing. Preston CJ summarised Mr Martin’s challenges to the decisions of the Minister as (I have paraphrased):

29. [58]

    Attention may be drawn to the challenge numbered (iii). Preston CJ noted that that argument, concerning the validity of a delegation, had already been rejected in Martin v NSW Minister for Mineral and Forest Resources [2010] NSWLEC 131. It had also been rejected by Commissioner Dixon in Martin v Minister for Mineral and Forest Resources [2011] NSWLEC 1011 (see (iii) above).

30. [59]

    Preston CJ rejected all challenges and dismissed the proceedings. He ordered Mr Martin to pay the first respondent’s costs of the proceedings, and the out of pocket expenses incurred by the second respondent (Central West Scientific Pty Ltd) for the purposes of the proceedings.

31. [60]

    The Attorney General relies upon this judgment to establish that the proceedings were conducted so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose, within s 6(d) of the Vexatious Proceedings Act. In particular, the Attorney General relied upon [154] of the judgment, in which Preston CJ held:

32. [61]

    There are no findings of facts in issue in the proceeding within s 91 of the Evidence Act. Rather, from the account given by Preston CJ of the claims made by Mr Martin, the arguments advanced by him, and the dismissal of all challenges, I am able to reach my own conclusions.

33. [62]

    I am satisfied that this proceeding was vexatious within the terms of s 6(d) of the Vexatious Proceedings Act.

34. [63]

    These proceedings were commenced by Summons filed on 13 December 2010. The Summons named the State of NSW as first defendant, Highlake Resources Pty Ltd as second defendant, and Mr and Mrs Ross Savas as third and fourth defendants. Mr Martin sought an order that an identified exploration licence was “null and void under the NSW Mining Act 1992”, and a direction that the Minister for Mineral Resources cancel that licence. No relief was sought in the Summons against Mr or Mrs Savas. Mr and Mrs Savas therefore filed a Notice of Motion seeking that the proceedings, so far as they were brought against them, be struck out. Sheahan J, exercising the powers under UCPR 13.4(1)(b), dismissed the proceedings against Mr and Mrs Savas. He held that none of the material before the Court disclosed any cause of action, relevant to the Court’s jurisdiction, against those defendants.

35. [64]

    Mr Martin appealed against that ruling to the Court of Appeal. The appeal was dismissed: Martin v State of NSW [2011] NSWCA 281.

36. [65]

    The finding that the material did not disclose any cause of action was a finding of fact that was in issue in the proceeding before Sheahan J, and upon which the Attorney General now seeks to rely to establish that the proceedings were vexatious within the meaning of ss 6(a) and 6(c) of the Vexatious Proceedings Act.

37. [66]

    In accordance with my earlier rulings, the judgment of Sheahan J is not, by reason of s 91 of the Evidence Act, admissible to prove the existence of the facts in issue.

38. [67]

    As was the case in respect of the proceedings referred to in item (i) above, it would be open to the Attorney General to seek to establish, by evidence, and independently of the judgment of Sheahan J, that the proceedings were, for example, instituted without reasonable ground. However, that has not been done, and there is no material before me upon which I could make such a judgment.

39. [68]

    Mr Martin filed Points of Claim in the principal proceedings. The Points of Claim included such assertions as:

40. [69]

    The second respondent (Highlake Resources Pty Ltd) filed a Notice of Motion seeking (inter alia) an order that Mr Martin’s Points of Claim be struck out or summarily dismissed, pursuant to UCPR 14.6, 14.8 and 14.28.

41. [70]

    UCPR 14.28 provides:

42. [71]

    Pain J held that Mr Martin had no standing to bring the proceedings. Her Honour held that no ground for judicial review was identified in the Points of Claim. She held that the pleading was embarrassing because the Court had no jurisdiction, direct or ancillary, to determine the allegations made (of, for example, theft of intellectual property and misuse of information) in the Points of Claim. With respect to a cause of action alluded to in the Points of Claim concerning the theft of commercial property, she held that:

43. [72]

    Ultimately, her Honour held that the Points of Claim should, in their entirety, be struck out, and she ordered accordingly.

44. [73]

    Pain J also made an order against Mr Martin for security for costs; that order was the subject of a successful appeal by Mr Martin: Martin v State of NSW (No 14) [2012] NSWCA 46. The Court of Appeal, however, did not interfere with the orders striking out the points of claim. In the appeal, Mr Martin sought to join Tellus Resources, notwithstanding that it had not been a party at first instance. The orders sought in the Court of Appeal were outside the jurisdiction of that Court.

45. [74]

    The Attorney General relies upon this judgment as revealing an instance of Mr Martin instituting vexatious proceedings against Tellus Resources, under ss 6(a), 6(c) and 6(d) of the Vexatious Proceedings Act. I am satisfied that such a finding is warranted.

46. [75]

    By Notice of Motion filed on 25 January 2011, Mr Martin sought orders for summary judgment, discovery, and a stay of the orders of Sheahan J. He also sought ancillary orders for, inter alia, production of documents, and:

47. [76]

    Pain J held that no proper basis had been advanced for a stay of the order made by Sheahan J, and declined to make an order disturbing the costs order made by Sheahan J.

48. [77]

    Pain J then noted:

49. [78]

    She declined to make any order in relation to the relief claimed in prayer 7 of the Notice of Motion.

50. [79]

    There is no disputed issue of fact found by Pain J, relevant to the relief now sought by the Attorney General. There is, therefore, no reason with respect to s 91 of the Evidence Act, why this judgment should not be accepted as evidence.

51. [80]

    The Attorney General relies upon the proceedings as evidence that the proceedings were vexatious within the meaning of ss 6(a) and 6(c) of the Vexatious Proceedings Act, or, in the alternative 6(d).

52. [81]

    It is possible to reach a conclusion as to that; I am satisfied that the proceedings commenced by Notice of Motion were an abuse of the process of the Land and Environment Court (s 6(a)); and were instituted and pursued without reasonable ground (s 6(c)).

53. [82]

    These proceedings were commenced by Summons filed on 21 January 2011. Mr Martin claimed 17 substantive forms of relief, many of them declarations concerning mining exploration licences. He also sought interim injunctive relief preventing the Minister for Mineral Resources taking any further action with respect to six mining exploration leases.

54. [83]

    On 13 May 2011, Mr Martin filed a Notice of Motion seeking an order that the Notice of Motion and “associated matters” be heard by the Chief Justice instead of Pain J, and that leave be granted to him to file summary judgment against the State of NSW. In the alternative, he sought a variety of orders, including:

55. [84]

    Notwithstanding Mr Martin’s first application, the Notice of Motion came on for hearing before Pain J. Pain J dismissed the bulk of the Notice of Motion. That included an application for leave to amend the Summons. She deferred ruling on an application to issue certain subpoenas. With respect to an application for summary judgment, she said:

56. [85]

    The Attorney General relies upon this judgment as evidence that proceedings were conducted in the manner described in s 6(d). There is validity in this position. There was no basis for the application for transfer to the Court of Appeal, and no basis for the claim that the State of NSW provide to him its instructions from either of the Ministers.

Proceedings in the Court of Appeal

1. [86]

   Mr Martin appealed against the decisions of Preston CJ (item (v) above) and Pain J (item (vii) above). Although he pleaded a number of grounds in the appeal against the decision of Preston CJ, all failed and that appeal was dismissed.

2. [87]

   The appeal against the orders of Pain J was partially successful, insofar as it related to orders her Honour had made for security for costs. Mr Martin also filed, in the Court of Appeal, a Notice of Motion in which, inter alia, he sought an order that five of the respondents to the Notice of Motion commenced in those proceedings, together with their legal representatives, “show cause why they should not be charged with contempt of Court”. He also sought an order for stay of certain proceedings consequential upon the orders of Sheahan J and Pain J, and an award of exemplary damages of $100,000,000. The Court of Appeal dismissed the Notice of Motion. The Court said:

3. [88]

   The Attorney General relies upon this judgment as evidence that, within s 6(d) of the Vexatious Proceedings Act, the proceedings were conducted in such a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. I am satisfied that that claim is made out.

4. [89]

   The nature of this proceeding can be discerned from the judgment of Handley AJA (with whom Basten JA agreed). His Honour said:

5. [90]

   Handley AJA said that the Notice of Motion was supported by a nine page affidavit sworn by Mr Martin, with substantial unpaginated annexures. He classified the orders sought into five groups.

6. [91]

   In support of that Notice of Motion, Mr Martin relied upon UCPR Pt 36 r 15, which provides:

7. [92]

   Handley AJA concluded:

8. [93]

   The Court dismissed the Notice of Motion.

9. [94]

   The Attorney General relies upon this judgment as evidence that the proceeding was vexatious within the meaning of ss 6(a), 6(c) and 6(d).

10. [95]

    There is no finding of any fact in issue in the proceedings within s 91 of the Evidence Act which would render this judgment inadmissible. It is admissible as a basis for considering the nature of proceedings brought and pursued by Mr Martin. The finding that there was no basis for finding that the orders came within UCPR 36.15(1) is sufficient to justify a finding that the proceedings were an abuse of the process of the Court and were instituted and pursued without reasonable ground, within the meaning of ss 6(a) and 6(c) of the Vexatious Proceedings Act. I so find.

Proceedings in the Australian Capital Territory

1. [96]

   Mr Martin filed a Statement of Claim in the Supreme Court of the Australian Capital Territory. Although the Statement of Claim is not in evidence, large portions of it are outlined in the judgment of Crispin J. A Master of the Supreme Court had struck out large portions of the Amended Statement of Claim and refused his application for summary judgment. Mr Martin appealed against that ruling. Crispin J dismissed the appeal. He found a number of the facts pleaded to be irrelevant to any cause of action, and at times embarrassing. He said:

2. [97]

   The Attorney General relies upon this judgment as showing that the proceedings fall within ss 6(a) and 6(c) of the Vexatious Proceedings Act. Alternatively, she relies upon it as evidence of conduct of the kind described in s 6(d).

3. [98]

   The findings of Crispin J do not amount to findings of disputed fact of the kind referred to in s 91 of the Evidence Act and this judgment is available for the purpose for which it is relied upon. I am satisfied that the proceedings were an abuse of process (s 6(a)) and instituted without reasonable grounds (s 6(d)).

4. [99]

   The originating process for these proceedings is not in evidence. It appears that Mr Martin filed a Statement of Claim in the Supreme Court of the ACT, naming himself, his wife, and Individual Homes as plaintiffs, and the Commonwealth Bank as defendant. The Statement of Claim was amended on more than one occasion. It further appears that the proceedings arose out of a winding up order made in 1994 in respect of Individual Homes. By Notice of Motion the defendant sought an order striking out the claim on the ground that it was frivolous or vexatious or disclosed no reasonable cause of action. The Statement of Claim, as finally amended, was described by Miles CJ as:

5. [100]

   His Honour then went on to give illustrations of the deficiencies of the further Amended Statement of Claim, and said:

6. [101]

   His Honour therefore struck out the Further Amended Statement of Claim.

7. [102]

   The facts in issue in the proceeding before Miles CJ was whether the further Amended Statement of Claim was frivolous or vexatious or disclosed no reasonable cause of action. The passages which I have extracted are findings of fact to that effect. They are the very findings of fact upon which the Attorney General seeks to rely in order to establish that the proceeding was a vexatious proceeding within the meaning of s 6(d) of the Vexatious Proceedings Act.

8. [103]

   By reason of s 91 of the Evidence Act the judgment is not admissible for that purpose.

9. [104]

   There is no other basis on which I could reach a conclusion that the proceedings come within s 6 of the Vexatious Proceedings Act. I exclude this judgment from consideration.

10. [105]

    Again, the originating process relating to these proceedings is not in evidence. The judgment shows that Mr Martin had sought interlocutory orders in relation to proceedings for the possession of property. Drummond J, with whom Dowsett J and Gyles J (the latter with brief additional comments) agreed, described the proceeding as “frivolous or vexatious”.

11. [106]

    That was the factual issue in the proceedings; by reason of s 91 of the Evidence Act, the judgment is not available as evidence of that fact.

12. [107]

    There is no other basis on which I could conclude that those proceedings come within s 6 of the Vexatious Proceedings Act.

13. [108]

    Mr Martin sought to prosecute three appeals against decisions of Connolly J, and an application for leave to appeal against an interlocutory decision of Connolly J. The matter came before the Court of Appeal of the ACT, constituted by Crispin P, Gray and Marshall JJ.

14. [109]

    The Court noted that one of the appeals concerned a decision made by Connolly J dismissing Mr Martin’s motion to issue a warrant of arrest for the Chief Executive of NRMA Insurance Ltd, to have him charged with contempt of court, and to have a solicitor who had acted for Insurance Australia Ltd also charged with contempt of court. Mr Martin also sought to challenge a decision by Connolly J to refuse to grant him an adjournment of the hearing, and to refuse to disqualify himself.

15. [110]

    These were not the only matters which Mr Martin sought to appeal.

16. [111]

    The Court, in a joint judgment, said:

17. [112]

    There is a question in my mind whether the findings I have recorded amount to findings of facts that were in issue in the proceedings. I have concluded that, on balance, they are findings of such facts and the judgment is therefore not admissible for the purpose for which it is tendered.

18. [113]

    There is no other basis on which I could properly conclude that the proceedings were vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

Proceedings in the High Court of Australia

1. [114]

   On a date which is not disclosed in the evidence, Mr Martin sought leave in the High Court of Australia to issue a Summons against Individual Homes (in liq) and the partners of a firm of solicitors who had previously acted for that company.

2. [115]

   The matter came before Kirby J on 28 May 2001.

3. [116]

   The judgment of Kirby J records the procedural history, and noted a concession by Mr Martin that he now asserted no interest in possession of the property the subject of the application. He said:

4. [117]

   Accordingly, he refused the application.

5. [118]

   The concession made by Mr Martin is strong evidence that the pursuit of the proceedings (if not their institution) were an abuse of the process of the High Court, within the meaning of s 6(a) of the Vexatious Proceedings Act, and that the proceedings were, if not instituted, certainly pursued, without reasonable ground, within the meaning of s 6(c). The judgment of Kirby J is admissible for that purpose.

6. [119]

   However, the conclusions expressed at [24] are, essentially, findings of facts in issue in the proceedings, that is, that the proceedings were pursued without reasonable grounds. The judgment cannot be admitted for that purpose.

7. [120]

   I am, however, satisfied, by reason of the concession made and recorded in [21] that these proceedings come within ss 6(a) and 6(c) of the Vexatious Proceedings Act.

The submissions

1. [121]

   The Attorney General submits that, on an analysis of these proceedings, it can be clearly seen:

Conclusions

1. [122]

   I have, in recounting the facts of the various cases, made findings concerning the nature of various of the proceedings upon which the Attorney General relied. Excluding those in relation to which the only evidence is contained in judgments that cannot be taken into account by reason of s 91 of the Evidence Act, I am satisfied that Mr Martin has both instituted and conducted proceedings that are vexatious. Moreover, I am satisfied that he has done so frequently, and over a considerable period.

2. [123]

   In reaching this conclusion, I have sought to take into account any relevant material put before me by Mr Martin. However, it has been impossible to identify anything that he has put before me, by way of evidence or argument, that throws any light on either of those questions. Mr Martin sought to address a range of perceived wrongs; for example, he exhibited to one of his affidavits a copy of a report of the Independent Commission Against Corruption. This had no bearing upon the issues which I had to determine.

3. [124]

   The transcript of the argument reveals that, in purporting to make submissions, Mr Martin constantly diverted from the questions in issue, which he never addressed. The transcript reveals that I asked him repeatedly to address the issues, something he intransigently refused to do, or was incapable of doing.

Discretion

1. [125]

   The remaining question is whether the discretion ought to be exercised in favour of making the orders sought by the Attorney General. Mr Martin has provided no discretionary basis for declining to make the orders. I am satisfied that a strong case exists in favour of the Attorney General’s application. I propose to make the orders as sought.

2. [126]

   I should note one remaining matter. In allowing Mr Martin’s appeal against the previous orders, and remitting the matter for rehearing, Sackville AJA questioned the “dual role” of the Attorney General. This was a reference to s 8(4) of the Vexatious Proceedings Act, which, in par (a) permits the Attorney General to make an application. The question raised by Sackville AJA was whether, since the proposed beneficiary of the orders, if made, would be, essentially, Ministers in the government of which the Attorney General is a member, there was any issue raised by what his Honour called “the dual role” of the Attorney General.

3. [127]

   Mr Martin addressed no argument to this question. He did appear to suggest that, if the Attorney General is to bring proceedings, it must be on information from the Prothonotary of the Supreme Court. There is no substance in that suggestion.

4. [128]

   For myself, I can see no basis upon which the Attorney General ought to be precluded from bringing an application. In that respect she is in a position analogous to that of any litigant mentioned in s 8(4)(d). That paragraph identifies “a person against or in relation to whom another person has instituted or conducted vexatious proceedings” as one of the class of people who may make an application.

5. [129]

   Although Mr Martin’s proceedings have named as defendants Ministers of at least two departments of the government of NSW, the proceedings, in those cases, have been against emanations of the NSW government. I see no reason why the Attorney General should not bring proceedings on behalf of those Ministers. Moreover, the evidence shows that there have also been proceedings in the ACT and in the High Court. The role of the Attorney General is to act to prevent the unwarranted disruption to the system of justice. I have no difficulty in the proposition that the Attorney General has appropriate standing, or authority, to bring the application.

6. [130]

   Finally, I return to the observations of the Court of Appeal in Teoh (No 8), and my conclusions with respect to s 91 of the Evidence Act.

7. [131]

   Undoubtedly, the person best placed to determine whether proceedings are vexatious in any of the senses recognised in s 6 of the Vexatious Proceedings Act is the judicial officer who determines issues raised under, for example, UCPR 13.4 and 14.28. But, on my analysis, those findings are expressly excluded by s 91.

8. [132]

   Section 91 constitutes a considerable fetter on proof of the matters necessary to be proved in order to establish that proceedings are vexatious. Given that the Vexatious Proceedings Act has three important objectives - (i) to protect potential defendants against unwarranted litigation; (ii) to protect courts against abuse of their processes; and (iii) to ensure that valuable court time is available for litigation and resolution of genuine disputes, applications thereunder should not be impeded by fetters on the admissible evidence. In its application to the Vexatious Proceedings Act, s 91 is antithetical to those objects.

9. [133]

   This is, in my opinion, a clear case for legislative reform. A simple amendment to the Vexatious Proceedings Act could exclude the operation of s 91 for the purposes of proof of the matters necessary to the making of orders.

10. [134]

    The orders I make are: